ISSN (Print) - 0012-9976 | ISSN (Online) - 2349-8846
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Marriage and Rape

We need a law on marital rape but such acts cannot be separated from the structure of the Indian family

One of the positive consequences of the public protests in the aftermath of the 16 December 2012 gang-rape in Delhi has been the intense public focus on rape and sexual violence in India. For long buried by the patriarchal establishment and its state, this issue has now become impossible to ignore anymore and even the most reactionary parts of India’s political establishment are forced to demonstrate that they are going to act on sexual violence. The report of the committee headed by the retired chief justice of India, J S Verma has been a major achievement in putting forth a framework for a progressive law on this issue, a structure that addresses the many different aspects of sexual violence and provides sensible measures which will help plug loopholes and provide justice to victims of sexual violence.

Unfortunately, the response of the government has been far from satisfactory. An ordinance was rushed through with ill-defined clauses and half-hearted measures. The manner in which the waters were muddied by introducing regressive ideas into the definition of rape seemed a deliberate attempt to scuttle the proposed law. It steered clear of some of the more important recommendations of the Verma Committee, and at the time of writing dissensions within the union cabinet on matters such as the age for consensual sex, on punishing so-called “false complaints” and on the subject of marital rape, threaten to unsettle the proposed legislation even before it comes to Parliament. The Justice Verma Committee even addressed the issue of forcibly having sex with one’s wife despite her clear refusal. This is an important first step and the government should not remove it from the final law (as it seems likely to do).

It has been an uphill struggle for the women’s movement in India to get marital rape on the agenda. For starters there is little or no legal support to the idea of rape within the institution of marriage. This absence has been compounded by social attitudes that refuse to accept that there could be lack of consent within marriage. The legality of marriage has been founded on the act of “consummation”, while the inability to have sex provides grounds for its annulment. Most importantly, the husband has the right to demand “restitution of conjugal rights” or take the support of the State to get sexual access to his wife who may be unwilling to participate in sexual relations. Marriage guarantees to the man, through the law, access to his wife’s body, which is also the basis for creating legal heirs to property and lineage. Despite all their other differences in personal law, zealously guarded by religious fundamentalists, there is near uniformity in imposing the male’s right to sexual access to his wife under all of them.

Moreover, an overwhelming number of Indian citizens live in, what are called, “arranged marriages” where the consent of the individuals involved in the marriage is at a discount, often considered entirely irrelevant. What would be the definition of marital rape in such a context where the consent of the woman to marriage is taken for granted? (This is not to deny though that marital rape can take place even where the marriage has not been arranged; it indeed does happen.) Given all this, it is obvious that criminalising marital rape has the potential to disturb the organisation of the contemporary Indian family. This largely explains the resistance from the patriarchal establishment (which encompasses both society and the State) to accept that there is something like marital rape and therefore to accept the proposal to criminalise it. Precisely for this reason, criminalising marital rape is so essential to any politics which foregrounds the democratisation of gender relations. This very centrality of sex and power in the present forms of marriage and family also leads to the opening up of a host of linked issues relating to consent in marriage.

However, it is also necessary to realise that even if the proposed legislation covers marital rape and makes it a criminal act, it will be a very small and partial step forward. For one thing, other than in exceptional cases, it would be impossible to prove marital rape given the conditions of our family structure. Sexual coercion is an indistinguishable part of the entire spectrum of unfreedoms and coercions which define family structure in India and whose main targets are its women and children. Consent, coercion, duties, demands and rights are so inextricably intertwined that it will be near impossible to target one without undermining other aspects, whether it is the lack of choice about marriage and motherhood, or son-preference or even, living assigned gender roles, to list just a few more prominent ones.

The women’s movement has for decades targeted certain institutions of and behaviour within the family such as dowry and domestic violence. But it is now time to start questioning the very structure of the Indian family – the monogamous, patrilineal, patronymic, and patrilocal family – which has been “normalised” by law. This is a daunting task, not just because it will undermine the entire structure of social, economic and political power in contemporary India, but also because the Indian family provides, despite all its problems, the closest of emotional ties for individuals. Questioning the family involves questioning one’s parents, one’s siblings and children; it involves questioning unfreedoms which appear alongside intense love and affection. But unless our present family form is critiqued and transformed, can we really imagine a life free from coercion and violence, whether sexual or otherwise?

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